Sibghat Ullah Khan, J. - (1.) THIS is landlords' writ petition. Original landlord Hafiz Mohd. Shafi (since deceased and survived by the petitioners) filed suit for eviction against tenant respondent No. 2 Harish Chandra Gupta (S.C.C. Suit No. 8 of 1977) on the ground of default. The suit was dismissed by J.S.C.C. Bulandshahr. However the said decision was set aside and suit was decreed by the Revisional Court. Against the judgment and order passed by the Revisional Court tenant filed Writ Petition No. 6938/79 before this Court. The said writ petition was allowed on 5.11.1980 and matter was remanded to the Trial Court/J.S.C.C. Thereafter J.S.C.C. decreed the suit. Against the said judgment and decree tenant respondent No. 3 filed S.C.C. Revision No. 10/82. The revision was allowed by IV A.D.J., Bulandshahr on 2.11.1987. The Revisional Court set aside the order of the Trial Court and directed the Trial Court to return the plaint to the plaintiff for filing the same before the Competent Court under section 23, P.S.C.C. Act. The said judgment of the Revisional Court is under challenge in this writ petition. The tenant respondent No. 3 had all along asserted that the original plaintiff (Hafiz Mohd. Shafi) was not the owner/landlord of the property in dispute and one Shujat was its owner/landlord. Section 23 of P.S.C.C. Act is quoted below: - - 23. Return of plaints in suits involving questions of title. - -(1) Notwithstanding anything in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend upon the proof or disproof of a title to, immovable property or other title which such a Court cannot finally determine, the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title. (2) When a Court returns a plaint under sub -section (1), it shall comply with the provisions of the second paragraph of section 57 of the Code of Civil Procedure and make such order with respect to costs as it deems just, and the Court shall, for the purposes of the Indian Limitation Act, 1877, be deemed to have been unable to entertain the suit by reason of a cause of a nature like to that of defect of jurisdiction.
(2.) IN the aforesaid section J.S.C.C. is not totally barred from deciding the question of land lordship. When the matter was earlier remanded by this Court no such plea was taken by the tenant that plaint should be returned for filing before Competent Court. Even after the remand, before the Trial Court no such plea was raised. This plea was raised for the first time in revision which has been decided by the impugned order. Tenant did not even examine the alleged landlord Shujat. Only his son was examined as witness. When Shujat alleged rival claimant to ownership/land lordship was not coming forward to assert his claim by filing application, it was not necessary for the plaintiff to seek declaration of his title against Shujat. If such type of thing is permitted, the tenant may make it almost impossible for the landlord to seek his eviction. In any suit for eviction by the landlord against the tenant before J.S.C.C., tenant may give a list of several unconcerned persons and assert that they are claiming to be landlords. Tenant cannot compel the landlord to enter into dispute of title with a person who himself is not interested in asserting his title. It is true that if the plaintiff is not owner/landlord of the property in dispute then suit for eviction cannot be decreed. However, this fact can very well be decided by the J.S.C.C. Necessity to return the plaint for filing before Competent Court under section 23 of P.S.C.C. Act may arise only when some other person seriously dispute the title of the plaintiff and it appears to the Court that complicated question of title is involved, otherwise not. No case, in between plaintiff and Shujat is pending anywhere. The scope of section 23 of P.S.C.C. Act has been considered by the Supreme Court in the following two authorities: 1. Budhu Mal v. Mahabir Prasad : AIR 1988 SC 1772. 2. Shamim Akhtar v. Iqbal Ahmad : 2001 (42) ALR 131 (SC).
(3.) IN the first authority it was held that complicated question of title was involved hence plaint should have been returned for filing before Competent Court under section 23, P.S.C.C. Act. However, it was also held in para. 9 that "section 23 does not make it obligatory on the Court of Small Causes to invariably return the plaint once a question of title is raised by the tenant in a suit for eviction.";